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Judge Dismisses High Seas Cocaine Case

November 11, 1991

SAN DIEGO (AP) _ A judge dismissed drug charges against the captain and a crewman of a freighter that authorities say was scuttled off Mexico to avoid the seizure of 15 tons of cocaine.

U.S. District Judge Rudi M. Brewster said Friday that both men were ″probably guilty as hell″ but that prosecuting them would violate the Constitution because federal agents had bungled the investigation.

A Coast Guard drug-interdiction team that boarded the Honduran-registered Nordcapp failed to keep notes or videotape interviews with other crew members, violating a legal duty to preserve evidence that might have exonerated them, the judge ruled.

The vessel sank Sept. 11, 1990, about 400 miles south of Acapulco, Mexico, hundreds of miles from the region’s usual shipping lanes.

Authorities contend it was scuttled to avoid the seizure of what would have ranked as the largest maritime seizure of cocaine in U.S. history. The crew blamed an engine-room fire for the sinking.

Captain Horacio Velarde-Gavarrete, 48, a Nicaraguan, and Ecuadoran crewman Bolivar Wilson Guerrero-Mosqueda, 43, were indicted on charges of possessing $273 million worth of cocaine on the ship with intent to distribute it.

The Coast Guard team aboard the Navy cruiser Arkansas received permission to board the Nordcapp near the Clipperton Islands but, when they did, the captain told them the ship was on fire, the indictment said.

The Arkansas was sent to intercept the freighter after confidential intelligence information was received that it carried cocaine, according to government documents filed in court.

The Nordcapp sank shortly after its crew was rescued.

U.S. agents brought the crewmen to San Diego and briefly held them as witnesses, co-defense attorney Steve Riggs said.

Crew members said an explosion ignited an uncontrollable fire in the engine room. Riggs said nobody took notes or videotaped the interviews by Coast Guard investigators and agents from the U.S. Drug Enforcement Administration, Customs Service and Naval Investigative Service.

All except Velarde and Guerrero were returned to their homes in Panama, Colombia, Ecuador and Peru a few days later.

Their repatriation violated the defendants’ Fifth Amendment right to due process and Sixth Amendment right to have a compulsory process for obtaining witnesses in their favor, the judge ruled.

The government’s failure to record interviews that might have helped prove the innocence of Velarde and Guerrero also violated a 1982 U.S. Supreme Court decision requiring federal agents to preserve potentially favorable defense testimony, the judge said.

″It seems obvious to the court that, luckily, an immense load of cocaine did not make it to its destination,″ the judge said. ″I am fully confident there is 15 tons of cocaine sitting at the bottom of the sea 1,900 miles off the coast of California.″

Both Velarde and Guerrero could have received life in prison without parole if convicted. They remain jailed while the U.S. Justice Department decides whether to appeal.

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